Citation Nr: 0926068
Decision Date: 07/13/09 Archive Date: 07/21/09
DOCKET NO. 05-12 452 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Huntington,
West Virginia
THE ISSUES
1. Entitlement to a compensable evaluation for
psychoneurosis.
2. Entitlement to service connection for a bilateral knee
disorder.
3. Entitlement to service connection for a respiratory
disorder.
4. Entitlement to service connection for residuals of cold
injury to the ears, hands, feet and legs.
REPRESENTATION
Veteran represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Catherine Cykowski, Associate Counsel
INTRODUCTION
The Veteran had active duty service from June 1949 to June
1950.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a February 2004 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Huntington, West Virginia.
In December 2006, the Veteran testified at a Board hearing
before the undersigned Veterans Law Judge.
The Board previously remanded this matter in February 2007.
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
The issue of service connection for a bilateral knee
disability is addressed in the REMAND portion of the decision
below and is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. The Veteran's service-connected psychoneurosis symptoms
are not severe enough to interfere with social or
occupational functioning, and the Veteran does not require
continuous medication to control symptoms.
2. A respiratory disorder, diagnosed as COPD, is first show
many years after service, and there is no evidence that that
COPD is related to inservice asbestos exposure or to any
other incident of service.
3. Competent medical evidence establishes a nexus between
cold exposure during service and currently diagnosed
paresthesias of the ears, hands, feet and legs.
CONCLUSION OF LAW
1. The criteria for a compensable evaluation for
psychoneurosis are not met. 38 U.S.C.A. § 1155, 5107 (West
2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.125, 4.130, Diagnostic
Code 9411 (2008).
2. A respiratory disorder was not incurred in or aggravated
by service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R.
§ 3.303 (2008).
3. Cold injury of the ears, hands, feet and legs was
incurred in service. 38 U.S.C.A. §§ 1131, 5107 (West 2002);
38 C.F.R. § 3.303 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. VA's Duties to Notify and Assist
On November 9, 2000, the Veterans Claims Assistance Act of
2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5106, 5107, 5126 (West 2002), became law. Regulations
implementing the VCAA were then published at 66 Fed. Reg.
45,620, 45,630-32 (August 29, 2001) and are now codified at
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2008). The
VCAA and its implementing regulations are applicable to this
appeal.
The duty to notify under the VCAA requires VA to notify the
claimant and the claimant's representative, if any, of the
information and medical or lay evidence that is necessary to
substantiate the claim. When VA receives a complete or
substantially complete application, it will notify the
claimant of any information and medical or lay evidence that
is necessary to substantiate the claim. VA will inform the
claimant which information and evidence, if any, the claimant
is to provide to VA and which information and evidence, if
any, that VA will attempt to obtain on behalf of the
claimant. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. §
3.159 (2008).
The VCAA and its implementing regulations provide that VA
will assist a claimant in obtaining evidence necessary to
substantiate a claim. Under these provisions, VA is required
to obtain service medical records and relevant VA healthcare
records and must make reasonable efforts to help the veteran
obtain other relevant medical records. The duty to assist
also requires VA to provide the claimant with a medical
examination or a medical opinion when such an examination or
opinion is necessary to make a decision on a claim. 38
U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R § 3.159 (2008).
The Court has mandated that VA ensure strict compliance with
the provisions of the VCAA. Quartuccio v. Principi, 16 Vet.
App. at 183 (2002).
During the pendency of this appeal, on March 3, 2006, the
Court issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which
held that the VCAA notice requirements of 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements
of a service connection claim. Those five elements include:
1) veteran status; 2) existence of a disability; 3) a
connection between the veteran's service and the disability;
4) degree of disability; and 5) effective date of the
disability. The Court held that upon receipt of an
application for a service-connection claim, 38 U.S.C.A. §
5103(a) and 38 C.F.R.
§ 3.159(b) require VA to review the information and the
evidence presented with the claim and to provide the claimant
with notice of what information and evidence not previously
provided, if any, will assist in substantiating or is
necessary to substantiate the elements of the claim as
reasonably contemplated by the application. Dingess/Hartman
at 488. Additionally, this notice must include notice that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
Id.
A. Duty to Notify
The RO provided the Veteran with VCAA notice regarding his
claim for service connection for a bilateral knee condition
in a January 2003 letter. A July 2003 letter informed the
Veteran of the evidence required to substantiate his claim of
entitlement to service connection for cold injury residuals.
An October 2003 letter notified him of the information and
evidence necessary to substantiate the claim of entitlement
to service connection for a respiratory disorder secondary to
asbestos exposure. These notices were provided prior to the
rating decision on appeal, thus reflecting compliance with
the timing requirements set forth in Pelegrini.
The Veteran received notice regarding his claim for an
increased rating for psychoneurosis in September 2008. The
September 2008 advised the Veteran of how disability ratings
and effective dates are determined.
Although the September 2008 notice was provided after the
rating decision on appeal, any defect in the timing of the
notice was cured by readjudication in the April 2009
Supplemental Statement of the Case. Mayfield v. Nicholson,
444 F.3d 1328 (Fed. Cir. 2006)
The Board notes that the VCAA letters furnished the Veteran
did not include the notice required by Vazquez-Flores v.
Peake, 22. Vet. App. 37 (2008). However, as indicated, the
Veteran was informed in the VCAA notice that an increased
rating requires evidence of an increase in severity of a
service-connected disability. In addition, the September
2008 Supplemental Statement of the Case advised the Veteran
of the specific findings necessary to establish a compensable
rating for service-connected psychoneurosis.
The Board finds that the duty to notify has been satisfied
with respect to the claims being decided. All the VCAA
requires is that the duty to notify is satisfied, and that
appellants be given the opportunity to submit information and
evidence in support of their claims. Once this has been
accomplished, all due process concerns have been satisfied.
See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v.
Brown, 9 Vet. App. 553 (1996).
B. Duty to Assist
The RO assisted the Veteran by obtaining the service medical
records and relevant post-service medical records identified
by him. The veteran has also been afforded a VA examination.
The Board's February 2007 remand requested that the RO obtain
sick call logs.
A March 2007 response from the NPRC indicated that ship logs
are not on file.
A September 2008 letter from the National Archives stated
that the sick call logs are not a permanent record according
to Navy Department record management regulations and are
therefore not accessioned by the National Archives. A
September 2008 letter from the National Archives stated that
the sick call logs are not a permanent record according to
Navy Department record management regulations and are
therefore not accessioned by the National Archives. VA
regulation provides that VA will end its efforts to obtain
records from a federal department or agency only if VA
concludes that the records sought do not exist or that
further efforts to obtain those records would be futile.
Cases in which VA may conclude that no further efforts are
required include those in which the federal department or
agency advises VA that the requested records do not exist or
the custodian does not have them. § 3.159(c) (2) (2008). In
light of the responses from the NPRC and the National
Archives, the Board finds that further efforts to obtain the
sick call logs are not warranted.
Under these circumstances, the Board finds the requirements
of the duty to assist have been satisfied with respect to the
claims being decided.
II. Analysis of Claims
A. Legal Criteria - Service Connection
Applicable law provides that service connection will be
granted if it is shown that the veteran suffers from
disability resulting from an injury suffered or disease
contracted in line of duty, or for aggravation of a
preexisting injury suffered or disease contracted in line of
duty, in active service. 38 U.S.C.A. § 1131. That an injury
occurred in service alone is not enough; there must be
chronic disability resulting from that injury. If there is
no showing of a resulting chronic condition during service,
then a showing of continuity of symptomatology after service
is required to support a finding of chronicity. 38 C.F.R. §
3.303(b). Service connection may also be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
Service connection may be presumed for certain diseases,
including arthritis and bronchiectasis, if it is shown that
the veteran served continuously for 90 days or more during a
period of war or during peacetime after December 31, 1946,
such disease became manifest to a degree of 10 percent within
one year from the date of discharge, and there is no evidence
of record establishing otherwise. 38 U.S.C.A. §§ 1101,
1112(a), 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a)
(2008). Presumptive periods are not intended to limit
service connection to diseases so diagnosed when the evidence
warrants direct service connection. 38 C.F.R. § 3.303(d).
Generally, to prevail on a claim of service connection on the
merits, there must be medical evidence of (1) current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the present disease
or injury. Hickson v. West, 12 Vet. App. 247 (1999).
In determining whether service connection is warranted for a
disability, VA is responsible for determining whether the
evidence supports the claim or is in relative equipoise, with
the veteran prevailing in either event, or whether a
preponderance of the evidence is against the claim, in which
case the claim must be denied. 38 U.S.C.A. § 5107(b) (West
2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
There is no specific statutory or regulatory guidance with
regard to claims for service connection for asbestosis or
other asbestos-related diseases. McGinty v. Brown, 4 Vet.
App. 428, 432-33 (1993). In 1988, VA issued a circular on
asbestos-related diseases that provided guidelines for
considering asbestos compensation claims. See Department of
Veterans Benefits, Veterans' Administration, DVB Circular 21-
88-8, Asbestos-Related Diseases (May 11, 1988). The
information and instructions contained in the DVB Circular
have since been included in VA Adjudication Procedure Manual,
M21-1, part VI, para. 7.21 (October 3, 1997) (hereinafter
"M21-1"). Also, an opinion by VA's Office of General Counsel
discussed the development of asbestos claims. VAOPGCPREC 4-
00. The Court has held that applicable criteria provide no
presumption of service connection for asbestos exposure
claims. See Dyment v. West, 13 Vet. App. 141, 145 (1999)
(holding that M21-1 does not create a presumption of exposure
to asbestos solely from shipboard service).
The M21-1 guidelines provide that VA must determine whether
military records demonstrate evidence of exposure to asbestos
in service and whether there is pre- or post-service evidence
of asbestos exposure. Then, VA must determine the
relationship between the claimed diseases and such asbestos
exposure, keeping in mind latency and exposure information
provided in M21-1, Part VI, Par. 7.21(b). This information
provides that the latency period varies from 10 to 45 years
between first exposure and development of the disease. The
exposure to asbestos may be brief (as little as a month or
two) or indirect (bystander disease).
VA recognizes that inhalation of asbestos fibers can produce
fibrosis and tumors. The most common disease is interstitial
pulmonary fibrosis (asbestosis). Asbestos fibers may also
produce pleural effusions and fibrosis, pleural plaques,
mesotheliomas of pleura and peritoneum, lung cancer and
cancers of the gastrointestinal tract. See Veterans Benefits
Administration Manual M21-1, part VI, paragraph 7.21(a)(1).
B. Respiratory disorder
The Veteran claims entitlement to service connection for a
respiratory disorder secondary to asbestos exposure during
service.
In an October 2003 statement, the Veteran indicated that,
during his service aboard the USS. Sabine, the ship was in
dry dock at Brooklyn Navy Yard for overhaul. The Veteran
stated that his duties included cleaning up debris, and he
indicated that he was exposed to asbestos during this
process.
Service treatment records do not reflect any diagnoses of or
treatment for a respiratory disorder, and the record does not
reflect treatment for a respiratory disorder within one year
of separation from service.
The Veteran had a VA examination in March 2009. The examiner
indicated that the claims file was reviewed. The examiner
noted that the Veteran worked in the boiler room of a ship
during service. The Veteran reported that he had no upper
respiratory symptoms. He denied dyspnea on exertion,
orthopnea, cough, pleuritic chest pain, chest tightness,
chest heaviness, hemoptysis, and anorexia. He denied any
history of asthma or COPD. He reported that he had never
used an inhaler or been on oxygen. He had no history of
lower extremity edema or excessive weight loss. He reported
that he felt his asbestos exposure had no impact on his
pulmonary status, and he denied that he has any lung disease.
He denied having any asbestos exposure during his post-
service career.
On physical examination, the VA examiner noted a respiratory
rate of 16. The Veteran spoke in full sentences, and there
was no shortness of breath. Pulmonary examination indicated
that the lungs were clear to auscultation, with no wheeze, no
rales, no dullness to percussion, no egophony and no clubbing
or cyanosis of the extremities.
The VA examiner diagnosed minimal COPD. The examiner stated
that, based on the history and physical examination and
diagnostic tests, there was no basis for asbestosis or
asbestos-related lung disease. The examiner stated that
there was no evidence of reduced total lung capacity, vital
capacity or DLCO on pulmonary testing, as would be expected
for patients with asbestosis. The Veteran's chest x-ray was
normal. The examiner noted that the Veteran uses no inhaler,
is not on oxygen and denied all respiratory symptoms.
The Board concludes that there is a preponderance of the
evidence against the Veteran's claim for service connection
for a respiratory disorder. COPD was not manifested during
service or for many years after service. The VA examination
report concluded that the Veteran did not have an asbestosis
or an asbestos-related lung disease. There is no medical
evidence of a relationship between COPD and any incident of
service, including any claimed asbestos exposure.
Accordingly, the Board concludes that service connection for
a respiratory disorder is not warranted. In reaching a
decision in this case, the Board has considered the doctrine
of reasonable doubt. However, as the evidence is not in
relative equipoise, the Veteran may not be afforded the
benefit of the doubt. 38 U.S.C.A. § 5107.
C. Cold injury residuals
The Veteran claims service connection for cold injury
residuals of the ears, hands, feet and legs. In various
statements, including a July 2008 letter, the Veteran has
indicated that he was exposed to extremely cold weather while
working on a deck helping to fuel ships in the North
Atlantic.
At the hearing, the Veteran testified that he received
treatment for cold injury during service. He stated that he
was treated by use of a hot tub at the U.S. Naval Air Station
in Norfolk, Virginia.
The Veteran's separation examination conducted in June 1950
did not include any findings or complaints of cold injury.
An August 1950 examination for extended active duty reflects
that the Veteran reported leg trouble.
A memorandum from the Naval Records Management Center, dated
in 1957, indicated that the sick call log of the U.S. Naval
Air Station, Norfolk, Virginia, note that the Veteran was
seen on five occasions in May 1950 for leg trouble and
diathermy.
Post-service VA medical records show that the Veteran has
complained of various symptoms related to cold exposure,
including aching of the feet and hands. VA outpatient
medical records dated in 2004 and 2005 reflect diagnoses of
chronic patellofemoral arthralgia, possible Raynaud's
phenomenon and distal paresthesias, painful in hands and
feet.
The record contains a medical opinion from a private
physician, Dr. A.B., and a report of a 2009 VA examination.
A July 2004 statement from Dr. A.B. indicated that the
Veteran's cold injury is directly related to his symptoms of
cold sensitivity and chronic knee pain, as well as tingling
of the hands, feet and ears.
In April 2005, the Veteran submitted an opinion from a
private physician, Dr. A.B., M.D. Dr. A.B. stated that the
Veteran's symptoms are related to cold exposure, which could
be classified as "frost-nip." Dr. A.B. stated that the
Veteran has no other cause for his paresthesias.
Upon VA examination in March 2009, the Veteran reported that,
while on a Navy ship in the North Atlantic in 1949, he was
asked to work outside for a 12-day period, during which he
was exposed to cold temperatures. He reported that the
coldest temperature with wind chill was 25 degrees. He
reported that he was working outside approximately six hours
a day, wearing a wool coat, cotton gloves, a sailor hat and
thick overalls. There was no water immersion of feet, hands
or knees.
The Veteran reported that his hands, feet and legs were
affected by cold exposure. He reported that his symptoms at
the time of cold exposure included numbness and pain in his
feet, ears, hands and knees. He reported that his pain was
10/10 in severity. There were no skin changes,
discoloration, edema, necrosis, blisters, loss of tissue or
autoamputation. The examiner noted that the treatment that
the Veteran received for his initial injury was rest and
aspirin for approximately 10 days. He was also seen at the
Norfolk Naval Base Medical Clinic and was told to take hot
baths and use heating pads.
The Veteran reported feeling very sensitive to the cold since
1949, especially in the winter. He reported that he would
wear double socks and double gloves when appropriate. He
denied any history of Raynaud's phenomenon or any change in
skin color when exposed to the cold. He denied
hyperhidrosis. He had no issues with chronic pain resembling
reflex sympathetic dystrophy. He denied any history of
recurring fungal infections on his extremities, no breakdown
or ulceration, no frost bite scars on any part of his body.
The VA examiner indicated that there were no disturbances of
nail growth, no skin cancer and no lower extremity edema.
There was no skin thinning or thickening on any part of the
body.
The Veteran reported some pain in the MTP joints of the right
and left hands. He complained of numbness and pain in the
tips of his fingers only when exposed to cold. He denied any
discoloration of the hands and feet but reported that his
hands became "very cold." He denied any weakness of the
hands, swelling or Raynaud's. He denied any fungal infection
of the hands, ulcers or scars, misshapen nails, skin
breakdown or unusual sweating. He indicated that he did not
have complete loss of sensation and that the numbness and
tingling of the tips of the fingers waxes and wanes and is
not there constantly. He did wear double gloves in the
wintertime. He reported that the treatment for the pain in
his hands was avoiding the cold.
The examiner noted that the Veteran denied any arthritic
symptoms of his feet and pain in the arches of his feet. He
denied any swelling or skin color changes in his feet. He
reported that they were sensitive to cold and that he got
numbness and tingling and pain of the tips of his nails when
exposed to cold. He denied any excessive sweating of the
feet, fungal infections or misshapen nails, ulcers or other
scars of the feet. The examiner noted that the Veteran did
not have complete loss of sensation of the feet as the
numbness and tingling of the tips and the toes waxed and
waned and was not there constantly. The Veteran reported
that he wore double socks when going out in the cold. His
treatment included avoiding the cold.
The examiner diagnosed osteoarthritis of the first MTP
bilaterally. The examiner opined that the Veteran's cold
exposure is most consistent with frostnip, not frostbite,
which refers to cold induced local paresthesias that resolve
with re-warming. The examiner indicated that there is no
permanent tissue damage and no long-term sequelae. The
examiner explained that sub-freezing temperatures are
typically required to induce the tissue destruction
associated with frostbite.
The Board must address the conflicting VA and private medical
evidence regarding a medical nexus. Guerrieri v. Brown, 4
Vet. App. 467 (1993). Greater weight may be placed on one
examiner's opinion over another depending on factors such as
reasoning employed by the examiners and whether or not, and
the extent to which they reviewed prior clinical records and
other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40
(1994). Additionally, the thoroughness and detail of a
medical opinion are among the factors for assessing the
probative value of the opinion. See Prejean v. West, 13 Vet.
App. 444, 448-9 (2000).
In Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the
Court held that a claims file review, as it pertains to
obtaining an overview of a veteran's medical history, is not
a requirement for private medical opinions. A review of the
claims file by a VA examiner, without more, does not
automatically render the VA examiner's opinion competent or
persuasive since the claims file is a tool to assist in
familiarity for the physician with the claims file, and
conversely a private medical opinion may not be discounted
solely because the opining clinician did not review the
claims file as there are other means by which a physician can
become aware of critical medical facts, such as a history of
treating the veteran for an extended period of time and/or
reviewing pertinent medical literature. The relevant focus
is not on whether the clinician had access to the claims
file, but instead on whether the clinician was "informed of
the relevant facts" in rendering a medical opinion. Thus,
when VA refers to facts obtained from review of the claims
file as a basis for crediting one expert opinion over
another, it is incumbent upon VA to point out those facts and
explain why they were necessary or important in forming the
appropriate medical judgment. In sum, in Nieves-Rodriguez,
the Court indicated that it is the factually accurate, fully
articulated, sound reasoning for the conclusion, not the mere
fact that the claims file was reviewed, that contributes
probative value to a medical opinion.
The Board finds that the evidence is at least in equipoise
regarding whether the Veteran has cold injury cold injury
residuals of the ears, hands, feet and legs related to
service. The Veteran has provided competent testimony
regarding his in-service cold exposure. As noted, Naval
Department reflect that the Veteran reflect that the Veteran
received diathermy treatment for leg pain in May 1950. This
is consistent with the Veteran's report that he used a hot
tub for his symptoms after being exposed to cold
temperatures. Finally, Dr. A.B.'s statements provide a
medical nexus between the Veteran's in-service cold exposure
and the claimed disability. Accordingly, the Board concludes
that service connection is warranted for cold injury
residuals of the ears, hands, feet and legs.
D. Increased rating for psychoneurosis
Disability evaluations are determined by evaluating the
extent to which a veteran's service-connected disability
adversely affects his ability to function under the ordinary
conditions of daily life, including employment, by comparing
his symptomatology with the criteria set forth in the
Schedule for Rating Disabilities (rating schedule). 38
U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1, 4.2, 4.10
(2008). If two evaluations are potentially applicable, the
higher evaluation will be assigned if the disability picture
more nearly approximates the criteria required for that
evaluation; otherwise, the lower evaluation will be assigned.
38 C.F.R. § 4.7 (2008).
Where an award of service connection for a disability has
been granted and the assignment of an initial evaluation for
that disability is disputed, separate or "staged" evaluations
may be assigned for separate periods of time based on the
facts found. Fenderson v. West, 12 Vet. App. 119, 125-126
(1999). In other cases, the present level of disability is
of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58
(1994).
A disability may require re-evaluation in accordance with
changes in a veteran's condition. In determining the current
level of impairment, it is thus essential that the disability
be considered in the context of the entire recorded history.
38 C.F.R.
§ 4.1 (2008).
Except as otherwise provided by law, a claimant has the
responsibility to present and support a claim for benefits
under laws administered by the Secretary. The Secretary
shall consider all information and medical evidence of record
in a case before the Secretary with respect to benefits under
laws administered by the Secretary. When there is an
approximate balance of positive and negative evidence
regarding any issue material to the determination of a
matter, the Secretary shall given the benefit of the doubt to
the claimant. 38 U.S.C.A. § 5107 (West 2002); see also
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
The RO has assigned a non-compensable rating for
psychoneurosis. A non-compensable (zero percent) rating is
currently in effect, pursuant to Diagnostic Code (9410).
Diagnostic Code 9410 applies to unspecified neurosis.
The RO has evaluated the veteran's PTSD pursuant to
Diagnostic Code (DC) 9410, which is governed by the General
Rating Formula for Mental Disorders (formula). A 10 percent
evaluation is applicable where there is occupational and
social impairment due to mild or transient symptoms which
decrease work efficiency and ability to perform occupational
tasks only during periods of significant stress; or where
symptoms are controlled by continuous medication. A 30
percent evaluation is assignable for occupational and social
impairment with occasional decrease in work efficiency and
intermittent periods of inability to perform occupational
tasks (although generally functioning satisfactorily, with
routine behavior, self-care, and conversation normal), due to
such symptoms as: depressed mood, anxiety, suspiciousness,
panic attacks (weekly or less often), chronic sleep
impairment or mild memory loss (such as forgetting names,
directions or recent events). A 50 percent evaluation is
assignable for occupational and social impairment with
reduced reliability and productivity due to such symptoms as:
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short and long-term memory (e.g. retention of only highly
learned material, forgetting to complete tasks); impaired
judgment; impaired abstract thinking; disturbances of
motivation and mood; difficulty in establishing and
maintaining effective work and social relationships.
A 70 percent evaluation requires occupational and social
impairment, with deficiencies in most areas, such as work,
school, family relations, judgment, thinking, or mood, due to
such symptoms as: suicidal ideation; obsessional rituals
which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability
with period of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a worklike
setting); or inability to establish and maintain effective
relationships.
A 100 percent evaluation requires total occupational and
social impairment, due to such symptoms as: gross impairment
in thought processes or communication; persistent delusions
or hallucinations; grossly inappropriate behavior; persistent
danger of hurting self or others; intermittent inability to
perform activities of daily living (including maintenance of
minimal personal hygiene); disorientation to time or place;
memory loss for names of close relatives, own occupation, or
own name. 38 C.F.R. § 4.130 (2008).
According to the GAF scale in DSM IV, a GAF score of 21 to 30
reflects that behavior is considerably influenced by
delusions or hallucinations or serious impairment in
communication or judgment (e.g. sometimes incoherent, acts
grossly inappropriately, suicidal preoccupation). A GAF
score of 31 to 40 reflects some impairment in reality testing
or communication or major impairment in several areas, such
as work or school, family relations, judgment, thinking or
mood and an inability to work. A score from 41 to 50
reflects serious impairment in social and occupation
functioning including an inability to keep a job. A score
from 51 to 60 reflects moderate symptoms or moderate
difficulty in social, occupation or school functioning. A
GAF score of 61 to 70 denotes some mild symptoms (e.g.,
depressed mood and mild insomnia) or some difficulty in
social, occupational, or school functioning (e.g., occasional
truancy, or theft within the household), but generally
functioning pretty well, has some meaningful interpersonal
relationships. Id., at. 47. See Carpenter v. Brown, 8 Vet.
App. 240, 242 (1995). A score of 71 to 80 reflects symptoms
that are transient and expectable reactions to psychosocial
stressors and no more than slight impairment in social,
occupational or school functioning.
For reasons set forth below, the Board finds that the
criteria for a compensable evaluation are not met.
The Veteran had a VA examination in November 2003. The
examiner noted review of the claims file. The Veteran
reported that he has never had an anxiety problem. He denied
all symptoms of generalized anxiety disorder. He reported
that he never felt keyed up or on edge and managed to get
about six hours of sleep per night. He did not recall
details of the diagnosis of psychoneurosis.
On mental status examination, the examiner noted that the
Veteran was patient and cooperative and was in no acute
distress. The Veteran was neatly groomed and professionally
attired. Speech was normal in rate, tone and volume. His
thought processes were goal-directed. The Veteran reported
that he generally feels good. His affect appeared euthymic.
The Veteran was alert and oriented to all three spheres.
Memory for word recall was grossly intact. Concentration
testing was grossly intact. The Veteran denied suicidal,
homicidal or violent ideations, plans or intent. He denied
auditory or visual hallucinations or other signs of
psychosis. The examiner noted that the Veteran did not
appear to exhibit any signs of a formal thought disorder.
Insight and judgment appeared to be fair to good. The
examiner did not render any Axis I or Axis II diagnoses. The
examiner assigned a GAF of 70. The examiner noted that the
Veteran denied all symptoms of anxiety disorder and continued
to maintain that his only problem that bothered him was
nonspecific pain in the hands and feet, which he attributed
to cold injury.
Upon VA examination in March 2009, it was noted that the
Veteran was clean and neatly groomed. Psychomotor activity
and speech were unremarkable. The Veteran had a
cooperative, friendly and attentive attitude toward the
examiner. Affect was normal, and mood was good. The Veteran
was oriented to person, place and time. Thought process and
thought content were unremarkable. There were no delusions.
Insight was excellent. The Veteran reported sleep impairment
and reported that he was sometimes awakened by dreams but not
every night. The Veteran did not have obsessive or
ritualistic behavior or panic attacks. There were no
homicidal or suicidal thoughts. Impulse control was good.
The examiner noted that the Veteran's memory was very good.
The examiner did not render an Axis I or Axis II diagnosis.
The examiner assigned a GAF of 80.
The Board has carefully reviewed the evidence and finds that
a compensable rating is not warranted for psychoneurosis. As
noted above, a 10 percent rating is warranted when the
evidence shows occupational and social impairment due to mild
or transient symptoms which decrease work efficiency and
ability to perform occupational tasks only during periods of
significant stress; or where symptoms are controlled by
continuous medication. The VA examination reports reflect
that the Veteran denies any anxiety. VA examiners have found
that the Veteran does not experience occupational or social
impairment and does not require continuous medication.
Examiners have assigned GAF scores ranging from 70 to 80.
Given these findings, the Board concludes that there is a
preponderance of the evidence against the veteran's claim for
an increased rating for service-connected psychoneurosis. In
reaching this determination, the Board has considered the
"benefit-of-the-doubt" doctrine. However, as there is a
preponderance of the evidence against the Veteran's claim for
an increased rating, the Veteran may not be afforded the
benefit of the doubt.
ORDER
A compensable rating for psychoneurosis is denied.
Service connection for a respiratory disorder is denied.
Service connection for cold injury to the ears, hands, feet
and legs is granted.
REMAND
Additional development is necessary before the Board can
decide the Veteran's claim of entitlement to service
connection for a bilateral knee disorder.
The Veteran contends that he was treated for knee injuries
during service and has continued to experience chronic knee
pain since service.
Service treatment records show that complaints of leg pain
were noted at separation.
VA outpatient records dated in 2002 reflect that the Veteran
complained of chronic joint pain since 1950. He reported
persistent patellofemoral pain after overuse syndrome. The
Veteran reported that he had knee pain during service after
climbing ladders.
A 2009 VA examination reflects a current diagnosis of
bilateral patellar tendinitis. The examiner discussed
whether a bilateral knee condition was related to cold
exposure during service but did not provide an opinion as to
whether a bilateral knee condition is related to leg pain
noted during service.
The duty to assist requires VA to provide a medical
examination or obtain a medical opinion when such an
examination or opinion is necessary to make a decision on the
claim. 38 U.S.C. § 5103A(d)(1) (West 2002). An examination
or medical opinion is required when there is (1) competent
evidence of a current disability or persistent or recurrent
symptoms of a disability, (2) evidence establishing that an
event, injury, or disease occurred in service or during an
applicable presumptive period for which the claimant
qualifies, and (3) an indication that the disability or
persistent or recurrent symptoms of a disability may be
associated with the veteran's service or with another
service-connected disability, but (4) insufficient competent
medical evidence on file for the Secretary to make a decision
on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81
(2006).
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2008). Expedited
handling is requested.)
1. Schedule the Veteran for a VA
examination of his knees. The claims file
should be provided to the examiner in
conjunction with the examination, and the
examination report should indicate that
the claims file was reviewed.
2. The examiner should diagnose any
disability of the bilateral knees and
should state whether a bilateral knee
disability is at least as likely as not
(50 percent or greater likelihood) related
to service, including the leg pain noted
at separation. The examiner should
provide a detailed rationale, with
references to the record, for the opinion.
3. Thereafter, the RO should readjudicate
the claims on appeal based on all of the
evidence of record. If the disposition of
the claims remains unfavorable, the RO
should furnish the veteran and his
representative a supplemental statement of
the case and afford them an applicable
opportunity to respond.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
V. L. JORDAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs